FACTS OF THE CASE

 Ashok Kumar Sharma, the respondent no.2 herein filed a First Information Report
with police station, Division No. 3, Ludhiana, whereupon an offence under Section
304A read with Section 34 of the Indian Penal Code (for short "the IPC") was
registered. The gist of the information is that on 15.2.1995, the informant's father, late
Jiwan Lal Sharma was admitted as a patient in a private ward of CMC Hospital,
Ludhiana.
 On 22.2.1995 at about 11 p.m., Jiwan Lal felt difficulty in breathing. The
complainant's elder brother, Vijay Sharma who was present in the room contacted the
duty nurse, who in her turn called some doctor to attend to the patient. No doctor
turned up for about 20 to 25 minutes. Then, Dr. Jacob Mathew, the appellant before
us and Dr.Allen Joseph came to the room of the patient. An oxygen cylinder was
brought and connected to the mouth of the patient but the breathing problem increased
further. The patient tried to get up but the medical staff asked him to remain in the
bed. The oxygen cylinder was found to be empty. There was no other gas cylinder
available in the room.
 Vijay Sharma went to the adjoining room and brought a gas cylinder there from.
However, there was no arrangement to make the gas cylinder functional and in-
between, 5 to 7 minutes were wasted. By this time, another doctor came who declared
that the patient was dead. The latter part of the FIR stated that the death of my father
was occurred due to the carelessness of doctors and nurses and non availability of
oxygen cylinder and the empty cylinder was fixed on the mouth of my father and his
breathing was totally stopped hence my father died. I sent the dead body of my father
to my village for last cremation and for information I have come to you.
 On the abovesaid report, an offence under Section 304A/34 IPC was registered and
investigated. Challan was filed against the two doctors. The Judicial Magistrate First
Class, Ludhiana framed charges under Section 304A, IPC against the two accused
persons, both doctors. Both of them filed a revision in the Court of Sessions Judge
submitting that there was no ground for framing charges against them. The revision
was dismissed.
 The appellant filed a petition in the High Court under Section 482 of the Code of
Criminal Procedure praying for quashing of the FIR and all the subsequent
 proceedings.It was submitted before the High Court that there was no specific
allegation of any act of omission or commission against the accused persons in the
entire plethora of documents comprising the challan papers filed by the police against
them. The learned single Judge who heard the petition formed an opinion that the
plea raised by the appellant was available to be urged in defence at the trial and,
therefore, a case for quashing the charge was not made out. Vide order dated
18.12.2002, the High Court dismissed the petition.
 An application for recalling the abovesaid order was moved which too was dismissed
on 24.1.2003. Feeling aggrieved by these two orders, the appellant has filed the
appeals by special leave to Supreme Court of India.

CHARGES INVOLVED

Dr. Jacob Mathews and other doctors present on the event was charged for medical
negligence in the treatment of the deceased Jiwan Lal under Section 304 A and Section 34 of
IPC by the Judicial Magistrate of First Class.

Section 304 A of IPC :

304A. Causing death by negligence.—Whoever causes the death of any person by doing any
rash or negligent act not amounting to culpable homicide, shall be punished with
imprisonment of either description for a term which may extend to two years, or with fine, or
with both.

Section 34 of IPC:

34. Acts done by several persons in furtherance of common intention.—When a criminal act
is done by several persons in furtherance of the common intention of all, each of such
persons is liable for that act in the same manner as if it were done by him alone.
 QUESTION OF LAW

 Whether a medical professional like Dr Jacob Mathews in the instant case shall be
held guilty under Section 304A/34 of IPC?
 The term gross was in question before the hon’ble court to determine ones medical
negligence to hold him criminally liable?

ARGUMENTS

BY THE APPELLANT:

 The deceased Jiwan Lal was suffering from cancer in an advanced stage and as per
the information available, he was, in fact, not being admitted by any hospital in the
country because his being a case of cancer at terminal stage. He was only required to
be kept at home and given proper nursing, food, care and solace coupled with prayers.
But as is apparent from the records, his sons are very influential persons occupying
important positions in Government. They requested the hospital authorities that come
what may, even on compassionate grounds their father may be admitted in the
hospital for regulated medical treatment and proper management of diet. It was
abundantly made clear to the informant and his other relations who had accompanied
the deceased that the disease was of such a nature and had attained such gravity, that
peace and solace could only be got at home. But the complainant could prevail over
the doctors and hospital management and got the deceased admitted as an in-patient.
 Nevertheless, the patient was treated with utmost care and caution and given all the
required medical assistance by the doctors and para-medical staff. Every conceivable
effort was made by all the attending staff comprising of doctors and nurses and other
para-medicals to give appropriate medical treatment and the whole staff danced
attendance on the patient but what was ordained to happen, did happen. The
complainant and his relations, who were misguided or were under mistaken belief as
to the facts, lodged police report against the accused persons wholly unwarranted and
uncalled for.
  Reliance was placed by the appellant on a recent two-judge Bench decision of this
Court in Dr. Suresh Gupta v. Govt. of NCT of Delhi and Anr. (2004) 6 SCC 422. In
Dr. Suresh Gupta's case, the patient, a young man with no history of any heart
ailment, was subjected to an operation performed by Dr. Suresh Gupta for nasal
deformity. The operation was neither complicated nor serious. The patient died. On
investigation, the cause of death was found to be "not introducing a cuffed
endotracheal tube of proper size as to prevent aspiration of blood from the wound in
the respiratory passage". The Bench formed an opinion that this act attributed to the
doctor, even if accepted to be true, could be described as an act of negligence as there
was lack of due care and precaution. But, the Court categorically held for this act of
negligence he may be liable in tort, his carelessness or want of due attention and skill
cannot be described to be so reckless or grossly negligent as to make him criminally
liable.

JUDGMENT

1. Negligence is the breach of a duty caused by omission to do some thing which reasonable
man guided by those considerations which ordinarily regulate the conduct of human affairs
would do, or doing something which a prudent and a reasonable man would not do. The
definition of negligence as given in Law of Torts, Rattan Lal and Dhiraj Lal (edititede by
Justice G.P.Singh ), referred to herein above holds good. Negligence becomes actionable on
account of injury resulting from the act or omission amounting to negligence attributable to
the person, sued. The essential components of negligence are three: "duty", "breach" and
"resulting damage"….

2. Negligence in the context of medical profession necessarily calls for a treatment with a
difference. To infer rashness or negligence on the part of professional, in particular a doctor,
additional considerations apply. A case of occupational negligence is different from one of
professional negligence. A simple lack of care, an error of judgment or an accident, is not
proof of negligence on the part of medical professional. So long as a doctor follows a practice
acceptable to the medical profession of that day, he can not be held liable foe negligence
merely because a better alternative course or method of treatment was also available or
simply because a more skilled doctor would not have chosen to follow or resort to that
practice or procedure which the accused followed. When it comes to the failure of taking
precautions what has to be seen is whether those precautions were taken which the ordinary
experience of men has found to be sufficient; a failure to use special or extraordinary
precautions which might have prevented the particular happening cannot be the standard for
judging the alleged negligence. So also, the standard of care, while assessing the practice as
adopted, is judged in the light of knowledge available at the time of the incident, and not at
the date of trial. Similarly, when the charge of negligence arises out of failure to use some
particular equipment, the charge would fail if the equipment was not generally. available at
that particular time (that is the time of the incident) at which it is suggested it should have
been used.

3. A professional may be held liable for negligence on one of the two findings: either he was
not possessed of the requisite skill which he professed to have possessed, or, he did not
exercise, with reasonable competence in the given case, the skill which he did possess. The
standard to be applied for judging, whether the person charged has been negligent or not,
would be that of an ordinary competent person exercising - ordinary skill in that profession. It
is not possible for every professional to possess the highest level of expertise or skills in that
branch which he practices. A highly skilled professional may be possessed of better qualities,
but that can not be made the basis or the yardstick for judging the performance of the
professional proceeded against on indictment of negligence.

4. The test for determining medical negligence as laid down in Bolam's case [1957] 1
W.L.R. 582, 586 holds good in its applicability in India.

5. The jurisprudential concept of negligence differs in civil and criminal law. What may be
negligence in civil law may not necessarily be negligence in criminal law. For negligence to
amount to an offence, the element of mens rea must be shown to exist. For an act to amount
to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very
high degree. Negligence which is neither gross nor of a high degree may provide a ground for
action in civil law but can not form the basis for prosecution.

6. The word "gross" has not been used in Section 304-A of IPC, yet it is settled that in
criminal law negligence or recklessness, to be so held, must be of such a high degree as to be
"gross". The expression 'rash or negligent act' as occurring in Section 304-A of the IPC has to
be read as qualified by the word "grossly".

7. To prosecute a medical professional for negligence under criminal law, it must be shown
that the accused did something or failed to do something 'which in the given facts and
circumstances' no medical professional in his ordinary senses and prudence would have done
or failed to do. The hazard taken by the accused doctor should be of such a nature that the
injury which resulted was likely imminent.

8. Res ipsa louqitur is only a rule of evidence and operates in the domain of civil law
specially in cases of torts and helps in determining the onus of proof in actions relating to
negligence. It can not be pressed in service for determining per se the liability for negligence
within the domain of criminal law. Res ipsa loquitur has, if at all, a limited application in trial
on a charge of criminal negligence. In view of the principles laid down hereinabove and the
preceding discussion, we agree with the principles of law laid down in Dr. Suresh Gupta's
case (2004) 6 SCC 422 and re-affirm the same. Ex abundanti cautela, we clarify that what we
are affirming are the legal principles laid down and the law as stated in Dr. Suresh
Gupta'case.We may not be understood as having expressed any opinion on the question
whether on the facts of that case the accused could or could not have been held guilty of
criminal negligence as that question is not before us. We also approve of the passage from
Errors, Medicine and the Law by Alan Merry and Alexander McCall Smith which has been
cited with approval in Dr. Suresh Gupta's case.
 CRITICAL APPRAISAL

Reverting back to the facts of the case before us, we are satisfied that all the averments made
in the complaint, even if held to be proved, donot make out a case of criminal rashness or
negligence on the part of accused appellant. It is not the case of complainant that the accused
appellant was not a doctor qualified to treat the patient whom he agreed to treat. It is a cause
of non-availability of oxygen cylinder either because of the hospital having failed to keep
available a gas cylinder or because of the gas cylinder being found empty. Then, probably the
hospital may be liable in civil law (or may not be - we express no opinion thereon) but the
accused appellant can not be proceeded against under Section 304-A of IPC on the
parameters of Bolam's test.

The appeals are allowed. The prosecution of the accused appellant under Section 304-A / 34
IPC is quashed. All the interlocutory applications be treated as disposed of.
 LATEST JUDGMENTS

 Rakesh Kumar v. State of Himachal Pradesh1

In this case, the petitioner- a bus driver, was accused of causing death of the deceased by rash
and negligent driving. He was convicted under Sections 279 and 304A of IPC by the Trial
Court. His conviction was mainly based on the testimony of an interested witness- sister-in-
law, of the deceased. The petitioner challenged his conviction on the ground that reliance
could not be placed on such evidence as the witness was an interested witness being the
sister-in-law of the deceased.

The High Court perused the record and referred to a number of Supreme Court decisions to
discuss the law on the admissibility of the testimony of an interested witness. The High Court
was of the opinion that it is well settled that the evidence of interested witnesses is to be
scrutinized with care but cannot be rejected merely on the ground of being a partisan
evidence. If on a perusal of the evidence the Court is satisfied that the evidence is
creditworthy there is no bar on the Court relying on the said evidence. Interested evidence is
not necessarily unreliable evidence. Even partisanship by itself is not a valid ground for
discrediting or rejecting sworn testimony. Nor can it be laid down as an invariable rule that
interested evidence can never form the basis of conviction unless corroborated to a material
extent in material particulars by independent evidence. All that is necessary is that the
evidence of interested witnesses should be subjected to careful scrutiny and accepted with
caution.

However, on a careful scrutiny and corroboration of the evidence of the said interested
witness, it was found that there were irregularities in her evidence in material particulars. The
prosecution story which was mainly based on her evidence did not find confidence with the
Court. Accordingly, the petition was allowed and the petitioner was acquitted of the charges.

 State of Punjab v. Saurabh Bakshi 2

In this Judgment, the 2 people had died as an outcome of the rash and negligent driving of a
motor vehicle by the respondent. The Punjab and Haryana High Court had reduced the 1 year
imprisonment to 24 days i.e. the period already undergone during the trial upon payment of
compensation by the respondent. Terming this reduction of sentence to be a mockery of
justice, the Court held that the said decision by the High Court was taken absolutely in the
realm of misplaced sympathy and that such a crime blights not only the lives of the victims

1 (2017) SCC HP 1720, Criminai revision no. 134 of 2011.

2 (2015) 5 SCC 182.
 but of many others around them and ultimately shatters the faith of the public in judicial
system. Hence, it was held that the one year imprisonment awarded by the Trial Court should
be reduced to 6 months and that the respondent be taken into custody forthwith to suffer the
remaining period of sentence.

Quoting the words of Sophocles that “Law can never be enforced unless fear supports them”,
the Court said that the non-challan drivers feel that they are the “Emperors of all they survey”
and that in such cases deterrence is an imperative necessity. Stating that life to the poor or the
impecunious is as worth living for as it is to the rich and the luxuriously temperamental, it
was further said that neither the law nor the court that implements the law should ever get
oblivious of the fact that in such accidents precious lives are lost or the victims who survive
are crippled for life which, in a way, worse than death.

CRIME RATE STATISTICS

Comparison of data of cases of Causing death by negligence ( Section 304A) of 3 states

for 3 years

STATE 2014 2015 2016

Punjab 3206 3349 3582

Haryana 4150 4450 4879

Chandigarh 97 98 132

From the above data the criminal statistics of ‘Causing death by negligence’ [304(a)] is
displayed. In 2014, In Punjab the crime rate was recorded with 3206 cases , In Haryana it was
recorded with 4150 cases and In Chandigarh it was recorded with 97 cases. Simultaneously ,
in the year 2015 in Punjab it increased to 143 number of cases , in Haryana it increased to
300 number of cases, Whereas, in Chandigarh it increased just by 1 case. In the year 2016 the
crime rate in Punjab was recorded with 3582 cases, In Haryana at 4879 cases were recorded
and in Chandigarh it was recorded with 132 cases. As per our obsservation highest crime rate
was recorded in the state Haryana from the year 2014 – 2016 , the lowest crime rate was
recorded in the union territory Chandigarh from the year 2014 – 2016 .
 ACKNOWLEDGMENT
I am very thankful to ‘Dr. Pushpinder Kaur Gill’, lecturer, Department
of UILS. I am extremely grateful for her valuable guidance and
encouragement extended to me. I take this opportunity to record
sincere thanks to all the faculty members of University Institute of
Legal Studies for their help and encouragement. I also thank my
parents for their support.
 INDIAN PENAL CODE

“ CAUSING DEATH BY NEGLIGENCE”

304(A)

SUBMITTED TO: SUBMITTED BY:

Dr. PUSHPINDER KAUR KUNWARJIT SINGH

225/16

B.COM LLB